Feb 16, 2022

Sarah Palin vs. The New York Times

Sarah Palin vs. The New York Times

She may have lost, but some still call it a victory.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

We're covering Sarah Palin's libel lawsuit against The New York Times. Plus, a reader question about reader questions, and a survey on the most 100 influential people in politics.

Sarah Palin in 2014. Photo: Gage Skidmore
Sarah Palin in 2014. Photo: Gage Skidmore

Tangle 100.

We are putting together a post on the 100 most influential people in politics today. That includes politicians, celebrities, pundits, writers, creators — anyone who has an influence. In order to make this list, I am looking for nominations. Please check out this form to nominate someone and share it with friends and family who might be interested in making their case. I think this will be an interesting way to select these 100 folks! Get the form here.


Quick hits.

  1. The families of nine Sandy Hook school shooting victims reached a $73 million settlement with Remington, the maker of the gun used in the 2012 mass shooting. (The settlement)
  2. The National Oceanic and Atmospheric Administration projected that the U.S. would experience 10-12 inches of sea level rise over the next 30 years, which would match the sea level rise of the last 100 years. (The prediction)
  3. President Biden rejected former President Trump's most recent executive privilege claim which Trump was using in an attempt to prevent the release of White House visitor logs from the days leading up to the January 6 riots. (The decision)
  4. Both Democrat Stacey Abrams and Republican David Perdue, each attempting to oust Gov. Brian Kemp, are criticizing Georgia lawmakers’ proposal to ban fundraising while the legislature is in session as a transparent tactic to benefit Kemp. (The fight)
  5. Retail sales grew 3.8% last month even as inflation surged to a 40-year high. (The numbers)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Sarah Palin’s libel suit. The former governor of Alaska and 2008 Republican vice presidential candidate (running alongside John McCain) had sued The New York Times for libel over a 2017 editorial that erroneously linked her political rhetoric to the 2011 mass shooting where Gabby Giffords, then-Democratic congresswoman from Arizona, was shot in the head, and six others were killed. In the piece, which was written shortly after the 2017 Congressional baseball field shooting where Rep. Steve Scalise (R-LA) was shot, The Times referenced the 2011 shooting and suggested an ad circulated by Palin's political action committee had incited the shooting. Here is the offending paragraph from the story (emphasis mine):

Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs. Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask for of the right.

The ad was a map with crosshairs that identified congressional districts where Democrats had voted for Obamacare as potential pick up opportunities for Republicans:

The ad Palin's PAC ran.

No evidence ever surfaced to support the claim that Loughner, the shooter, had ever seen the ad, let alone acted because of it. The Times corrected and removed the incitement claim the next morning. Times editorial page editor James Bennet had picked up the piece from editorial board member Elizabeth Williamson and re-written it, but after publication (and criticism) emailed a colleague and said “I don’t know what the truth is here.” The Times apologized after removing the piece, but Palin sued two weeks later.

Palin's lawyers have portrayed The Times as a newspaper that regularly uses its power against conservatives, while The Times has said Palin was using a mistake the paper made (and corrected) to attempt to erode necessary legal protections for a free press. According to the Wall Street Journal, The Times' lawyer David Axelrod argued “Freedom of the press and freedom of speech are fragile things,” and liability for honest mistakes would lead to an onslaught of litigation, creating a chilling effect for newspapers like the Times.

Throughout the trial, Times editors and staff, as well as Palin, took the stand. It became one of the most transparent looks into the fact-checking and publishing processes at the paper of record, and a high stakes court case tied directly to freedom of the press. It is very rare for a libel suit to go to trial, and this case has become one of the major tests in recent memory of what kinds of things news outlets can print without repercussions.

Thanks to a 1964 Supreme Court ruling, in New York Times v. Sullivan, in order for a libel suit to succeed when the alleged defamation involves a well-known public figure, the complainant (in this case, Palin) needs to demonstrate "actual malice," and prove that The Times knowingly published a false statement or showed a reckless disregard for the truth.

On Monday, Jed Rakoff, the presiding judge in the case, said he would dismiss the lawsuit regardless of the jury's decision, because Palin had not demonstrated that The Times acted with the level of recklessness and ill intent that public figures need to demonstrate in a defamation lawsuit. But the judge allowed the jury to proceed for the public record and in case of an appeal, and on Tuesday, the jury came to the same conclusion as Judge Rakoff. Palin is expected to appeal, and some think the case could land before the Supreme Court.

Below, we'll take a look at some arguments about the case from the right and left, then my take.


What the right is saying.

  • The right says Palin has a strong case, even if she doesn't prevail.
  • Some say it's clear The Times should be held accountable, even if it was an error, for reckless disregard of the truth.
  • Others are happy Palin lost, but view the lawsuit as a success for highlighting The Times' biases.

Kyle Smith said Palin has a case against the New York Times.

"Did Giffords’ shooter ever see this map? No, not that we know of. Moreover, he had no clear political views. Instead, he simply harbored an obsessive hate for Giffords specifically, which was documented back to three years before the map’s existence," Smith said. "Three days after the shooting, Washington Post fact checker Glenn Kessler wrote, 'The charge that Palin’s map had anything to do with the shooting is bogus.'

"Yet six years later, after a far-left Bernie Sanders-loving terrorist shot and nearly killed Republican Congressman Steve Scalise on a Virginia baseball field, the Times tried to change the subject back to the Giffords shooting to deflect blame from the left," he wrote. "American libel law strongly favors the press rather than the people we write about, and for excellent reason. Opinions, even extremely nasty ones, are protected. Hurrah! What a dim, gray, Soviet-scented discourse we’d have in this country if it were otherwise. Also, the media can be forgiven for honest mistakes. Believe it or not, 'We’re too dumb to know what we said was false' is a legit defense. It’s pretty hard to lose a libel case, but the Times has put itself in a dicey spot."

In National Review, Kevin Williamson said the Times should be writing an apology "and a check."

"For a claim to be libelous, it must check three boxes, once it has been established that the claim was published and the subject identified: (1) the claim has to be false, which this one was; (2) it has to be defamatory, which there is no real question this one was: Not only is the claim defamatory on its face, it was obviously meant to be defamatory, in that the entire point of linking Palin to the shooting was to demean and discredit her; and (3) when the claim involves a public figure such as Palin, it has to have been published with 'actual malice' or 'reckless disregard for the truth.'

"There is a pretty good case to be made for actual malice: Palin had nothing at all to do with the story, and the only point of dragging her name into it was to damage her reputation and her political prospects," Williamson wrote. "But even if you think 'actual malice' is a coin toss, can anybody seriously argue that the Times’ performance in this matter was anything other than reckless in its disregard for the truth? ... The Times’ reckless attack on Palin was not a matter of opinion, even though it appeared in the opinion pages. The Times asserted a supposed fact falsely, defaming her with utter disregard for the truth."

The Wall Street Journal editorial board said Palin "won even in defeat."

"Ms. Palin couldn’t get over the high legal bar of proving 'actual malice' to a jury, but the case exposed slipshod editing and how a left-wing narrative skewed the publication’s commentary against an easy political target," the board wrote. "This was no heroic stand for a free press against a government censor or powerful figure. The case was a purely defensive effort to show that the falsehoods published about Ms. Palin in a 2017 editorial were unfortunate mistakes. The Times’ defense is that it was merely incompetent, not malicious.

"We all make mistakes, and journalists working under deadline pressure live in dread of misstating a fact or making an unchecked assumption," the board said. "The 'malice' standard established by the 1964 landmark, New York Times v. Sullivan, protects everyone in the press from many frivolous, harassing lawsuits. We are grateful for it, even if it too often gives license to partisans who don’t care about the truth. But the evidence produced at trial showed that the Times’ mistake was more than a misstated fact or two... the narrative that the right is uniquely responsible for political violence continues on the left, and the false Palin linkage lived on at the Times."


What the left is saying.

  • The left says Palin didn't make her case strongly enough.
  • They express relief she lost, and fear this case may land before the Supreme Court.
  • Some say her own testimony is what ultimately cost her at trial.

In The Washington Post, media critic Erik Wemple said Palin "didn't have the goods."

"Judge Jed S. Rakoff was impressed with an email from then-New York Times editorial page editor James Bennet on June 14, 2017. 'I really reworked this one,' wrote Bennet to colleague Elizabeth Williamson that evening. 'I hope you can see what I was trying to do. Please take a look.' Over six days of testimony and documents produced in discovery, Palin’s lawyers exposed an editorial process that was hurried and disjointed — typical of a news organization seeking to hustle on the day’s biggest story. They showed that Bennet, Williamson and others pursued two themes for the editorial — one on gun control and the other on the 'rhetoric of demonization.' When the two themes merged uncomfortably in Williamson’s draft, another editor apprised Bennet of the problem. He launched into the copy, inserting the false claims.

"What was missing from the whole production was any indication that Bennet was out to smear Palin. And here’s where his email to Williamson comes into play: No matter what you believe about Bennet or his colleagues, he’d be foolish to ask for Williamson’s review of the draft if he’d been committed to planting damaging falsehoods in it. 'The allegation that he published with ‘actual malice’ is also undermined, in the court’s view, by the actions he undertook after finishing his revisions of Ms. Williamson’s draft,' said Rakoff, highlighting the email seeking Williamson’s review. Translation: Palin needed evidence — preferably in email form — that Bennet was eager to nail Palin with something he knew was false: an 'actual malice' smoking gun. Instead, she offered only emails outlining another day at the Times."

In Slate, Seth Stevenson said Sarah Palin wasn't the point.

"She didn’t prove that the Times published something false despite knowing it was false, or that the Times recklessly disregarded the high probability it was publishing something false, or that the Times intended to defame her and took conscious, deliberate steps to do so," Stevenson said. "What Palin instead showed was that Times journalists are, much like everyone else in the world, capable of making sloppy errors when they rush to meet a deadline. She also showed (and this didn’t help her case) that those journalists really, really hate to make mistakes and try hard to correct them as quickly as possible.

"Does the freedom to write fearlessly about the famous and the powerful necessitate permitting even the gravest of errors? Or, as some on the right are suggesting— including a former president and two current Supreme Court justices— should we be taking another look at where we draw this line?" Stevenson asked. "I know two things for sure. 1) If this line’s going to be redrawn, I don’t want Donald Trump, or Neil Gorsuch and Clarence Thomas, holding the pencil. 2) This is by no means the end of this battle. Palin will surely appeal this verdict, and if hers isn’t the case that makes it all the way to the Supreme Court, people hoping to weaken New York Times v. Sullivan will look around for another vehicle."

In The New Republic, Alex Shephard said Palin's own testimony undercut her in "hilarious, Palinesque fashion."

"Whatever momentum she’d managed at the top of her testimony swiftly eluded her as it continued," he wrote. "Under questioning from her own attorney, Palin alleged that The New York Times had libeled her in instances aside from the 2017 editorial. Specifically, Palin said those close to her knew they would 'respond again to what The New York Times had lied about again.' Pressed on that point, however, Palin came up short on providing concrete examples of wrongdoing: 'My view was The New York Times took a lot of liberties and wasn’t always truthful,' she said, adding, 'That’s what I meant by ‘again.’'

"Later, when a lawyer from the Times brought up The Masked Singer, the quasi–game show that she appeared on in 2020, Palin replied, 'Objection.' She drew a reminder from the judge that witnesses were not permitted to object, as well as titters from those assembled in the courtroom," Shepherd wrote. "That might have been the moment that doomed Palin’s suit. Palin’s evidence-free assertions probably would have served her in good stead on the campaign trail or the debate stage, but in this setting, it was a self-inflicted wound."


My take.

It will probably come as no surprise that I'm glad Palin lost this suit, though I'm also glad it went to trial.

The Times deserved to sweat for what it did. It's bananas — certifiably loathsome — that the paper would take a 2017 shooting where Republican members of Congress were attacked, try to tie it to a 2011 shooting, and then try to tie that shooting back to a Republican politician who was basically a complete afterthought at the time. Palin, by 2017, was a political nobody, and the paper of record using its bully pulpit to go after her for an unrelated incident was lower than low brow.

What should have happened, in a healthy ecosystem, is that James Bennet should have been fired for the mistake. He may not have tied Palin to the shooting out of some malicious vendetta against her, but more likely because other liberals had been doing that back in 2011 — with no evidence — and he simply filed that assertion away as a fact and reprinted it six years later without checking. It's clear, from Bennet's internal communications, that he knew he screwed up and that he wanted to fix it. But that kind of care is supposed to be taken before publication.

As I've said before, The Times is a great newspaper, one I read every day, and its original reporting on the news side drives most of the opinion-making and news recycling that happens across television and other online media outlets. It is the engine. But with such robust protections for the press in place, it is an absolute necessity that we police ourselves and each other with care. Bennet would eventually resign from his job at The Times, in 2020, after publishing Republican Sen. Tom Cotton's opinion piece calling for a military response to civil unrest during the George Floyd protest. But the false allegations that Palin was somehow responsible for a mass shooting are what really should have ended his career.

The freedom to make mistakes is critical to a free press. Without the "malice" standard, news outlets — who already struggle to survive financially — would be drowned in lawsuits anytime they made a mistake and driving the press out of business would clearly leave us worse off as a society. But malice isn't the standard we should hold ourselves to, and The Times — and Bennet — deserved the public shaming they got for an inexcusable error, even if Palin didn’t meet the burden of proof to win the lawsuit.


Your questions, answered.

Q: I often find the answer to the reader question in some issues unsatisfying mostly because I feel a lot is left on the table for debate or the entire picture is not truly seen from a small answer. I think I noticed this about some of the Tangle issues on Joe Rogan. With the space you have to write, I understand potential limitations, but I wanted to hear your thoughts on an occasional podcast or even longer issue with a reader where some of these more popular or highly contested issues might be more detailed and drawn out.

— Adam, Pittsburgh, PA

Tangle: I don't blame you! The reader question is often one of the hardest sections for me to write precisely because I dedicate fewer words to it.

I still love answering reader questions in the newsletter, though, and don't plan to stop. Reader submissions usually fall into three categories: 1) Straight up questions about politics, usually asking for some kind of prediction or explanation. 2) A criticism that deserves a response, or 3) A question about Tangle — i.e., the process we use to produce the newsletter or how I go about working through certain issues.

I think these are all very valuable things to address here, but I have noticed that the reader question section often gets the most critical feedback. Usually, it's feedback like yours, asking for more context or additional fleshing out of a reply.

It's actually funny you bring this up, because last night I had a meeting with Trevor Eichhorn, Tangle's podcast editor, and we discussed ways to make the podcast more interesting and unique. One of the ideas we had was to allow readers to submit voicemail questions (something other podcasts do) and then have mailbag-type episodes that allow some more space to dive into those questions. I think it'd be a tremendous audio offering for Tangle fans and something that would give us more space to flesh out reader questions. We've also done entire issues dedicated to one reader question (or a few) and will certainly continue doing that going forward. For now, I'll just try to keep that in mind and better elevate the nuance in the reader question and answer section. Going forward, though, you can expect some new opportunities to interact with Tangle.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

As regions across America battle for human capital, middle America appears to be making up ground on the coastal cities. A new report from the Arkansas-based Heartland Forward found that between 2010 and 2019, workers were migrating from the coasts to the 20 central states in the heartland, according to Axios's Worth Sparkman. There are signals that this shift accelerated during the pandemic, a period of time the research didn't even cover. "The steady migration coupled with the rise of remote work means that smaller and medium-size heartland metros and rural areas can now attract more diverse talent," Sparkman wrote. An estimated 20-25% of full-time workers are expected to remain remote after the pandemic.


Numbers.

  • 112.3 million. The estimated viewership of the Rams vs. Bengals Super Bowl this year, the highest since 2015.
  • 30. The number of Democrats who have now announced their retirement from Congress after Rep. Kathleen Rice (D-NY) said she was stepping down.
  • $30 billion. The amount of new Covid-19 aid the Biden administration is asking for to increase testing, vaccines and therapeutics, according to The Washington Post.
  • $350 billion. The rough estimate of how much federal money has already been spent on testing, vaccines and treatments.
  • 39%. The percentage of voters who approve of the job Biden is doing, according to a new Politico / Morning Consult poll.
  • 57%. The percentage of voters who disapprove.

Have a nice day.

A U.S. patient has become the first woman and third person to date to be cured of HIV after a stem cell transplant, which she got as treatment for leukemia. The woman received a stem cell transplant from someone who was naturally resistant to the virus that causes AIDS. Since receiving the treatment for her acute myeloid leukemia, the woman has been in remission and free of the virus for 14 months without the need for her potent HIV therapy. The case is part of a larger U.S.-backed study by Dr. Yvonne Bryson and Dr. Deborah Persaud of Johns Hopkins that follows patients undergoing stem cell treatment who are also HIV positive, to see how it impacts them. Reuters has the story.


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